Background to the ruling
In 2018, the employer running a residential care facility and its works council did manage to reach agreement on their employees' working hours. They set that consensus down in a works agreement. When it came to documenting working hours, however, a conflict arose. In the conciliation committee proceedings that followed, the two parties again failed to find common ground, because in the employer's view the works council had no right of initiative. The works council based its argument, among other things, on Article 31(2) of the EU Charter of Fundamental Rights, invoking the 2019 ruling of the European Court of Justice on the mandatory introduction of systematic working time tracking. It went to the Minden Labour Court (Arbeitsgericht Minden) to have a right of initiative examined, but the court found for the employer. In doing so it relied on a 1989 ruling by the Federal Labour Court (Bundesarbeitsgericht, BAG). Only at second instance did the Hamm Regional Labour Court (Landesarbeitsgericht Hamm, LAG Hamm) rule differently.
LAG Hamm: the works council has a right of initiative
With its decision, the LAG Hamm extends the powers of works councils. According to the ruling, works councils do not merely have a defensive role towards time tracking systems. More control and the right to take the initiative in introducing working time tracking strengthen above all a works council's right to information. The LAG Hamm is thereby deliberately contradicting a 1989 BAG decision under which works councils may only have a say in the design, form and administration.
Alongside the works council's right of initiative, two further rights matter for working time tracking: the right of co-determination and the right of inspection. You can find out more in our eBook, which describes what the CJEU ruling means for employers in practice.
What does this mean for employers?
The dispute is now before the BAG, which must decide whether to stick with its 30-year-old ruling or change the legal position for works councils in Germany. Until the BAG rules, the proceedings to appoint the conciliation committee count as successful, since it cannot be ruled out that works councils do have a right of initiative to introduce electronic working time tracking; the dispute itself, however, has been stayed pending a court decision.
When introducing time tracking, we recommend working transparently with the works council. Intelligent time tracking such as clockin brings benefits to both sides of the table. Employers save manual effort, and therefore a lot of money, through smart automated processes. Employees can view their hours transparently at any time. That creates a fair, shared set of facts between the two parties, with no room for conflict.
No final decision yet
The consequences for employers are not yet clear. In the context of the 2019 CJEU directive on mandatory working time tracking, however, it is advisable not to wait for a BAG decision, but to implement now, as an employer, all the measures that follow from the new directive.
Recording working hours cleanly with clockin
With clockin you can document your employees' working hours and jobs cleanly and digitally via app. The tool is very popular with works councils and employers alike, because it helps employees stick to their rest periods and saves employers a great deal of working time by removing manual processes. The data collected in line with the GDPR can be used to analyse company processes and to gain a completely new perspective on the business. Start a free trial now, with no automatic subscription.
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